TOMAS v. GILLESPIE

The opinion of the court was delivered by: GEORGE DANIELS, District Judge

OPINION AND ORDER

Plaintiff Jean Bryson Tomas sues defendants Lorraine Gillespie
and Dizlo Music Corporation for declaratory relief, accounting
damages, and imposition of a constructive trust based on Tomas'
alleged ownership interest in copyrights to works authored by the
late jazz musician Dizzy Gillespie ("Gillespie"). Defendants move
for summary judgment under Fed.R.Civ.P. 56(c) on the grounds
that the action is barred (i) by the three-year statute of
limitations for civil actions maintained under the federal
Copyright Act, 17 U.S.C. § 507(b), and (ii) by the doctrine of
laches. For the reasons set forth below, the motion is granted.

I.

The following facts, viewed in the light most favorable to
Tomas, are relevant to this opinion.

Tomas was born on March 10, 1958 in New York City, out of
wedlock, to Connie Bryson. (Statement of Material Facts submitted
by Defs. Pursuant to Local Rule 56.1 ("Defs.' Rule 56.1
Statement") ¶ 1) Tomas claims that her biological father was
Gillespie. Connie Bryson had been acquainted with Gillespie from
1953 and claims that they began a sexual relationship in 1955,
when she turned 18. (Declaration of Constance Bryson ("Bryson
Decl.") at 1)) Tomas claims that she "always knew" that Gillespie was her father. (Deposition of Jean Bryson Tomas
("Tomas Dep.") at 12)

In November of 1964, Connie Bryson commenced paternity
proceedings against Gillespie in New York State Family Court, New
York County. (Id. ¶ 5) Tomas, who was about six years old at
the time, remembered participating in this proceeding. (Id. ¶
6; Tomas Dep. at 26) The Family Court ordered Gillespie to make
monthly support payments of $125 for Tomas until she reached the
age of majority. (Stipulation of Facts, dated February 2, 2001
("Stipulation") at 2) Gillespie made these payments for
approximately 14 years. (Id.) From an early age, Tomas knew
that Gillespie was providing support to her after that child
support proceeding. (Defs.' Rule 56.1 Statement ¶ 6)

Gillespie died on January 6, 1993 in Englewood, New Jersey.
(Am. Compl. ¶ 5) His last will and testament was probated in New
Jersey Superior Court, Bergen County. (Id. ¶ 7) He bequeathed
all his property to his widow, Lorraine Gillespie, and made no
financial provision for Tomas or Tomas' child. (Id.)

Tomas is herself a singer. (Defs.' Rule 56.1 Statement ¶ 7)
From at least 1986, she has claimed in connection with her career
that she is Gillespie's daughter. (Id.; Exs. 5 and 6 to
Declaration of Jean Bryson Tomas ("Tomas Decl."); Tomas Dep. at
42) From at least 1988, she has claimed publicly that she is
Gillespie's daughter to at least 25 newspapers and magazines, including the New York Times, USA Today, New York Post, and
Alyn Shipton, who is the author of a biography of Gillespie
titled Groovin' High.*fn1 (Defs.' Rule 56.1 Statement ¶ 7)

In 1992, Tomas sought to retain Raoul Felder, an attorney, to
represent her in a potential lawsuit against Gillespie to declare
paternity. (Id. ¶ 8; Ex. D to Defs.' Reply Mem. of Law in Supp.
of Defs.' Mot. for Summ. J. ("Defs.' Reply")) In 1993, Telarc
Records, a recording company, issued an album of Tomas'
performances: the liner notes mentioned that she was Gillespie's
daughter. (Defs. Rule 56.1 Statement ¶ 9; Ex. 5 to Tomas Decl.)
That same year, Telarc Records issued two albums of Gillespie's
last live recordings at the Blue Note jazz club in 1992. (Id. ¶
10) Tomas claims that Gillespie's attorney Elliott Hoffman
threatened in 1993 to prevent release by Telarc of other Gillespi
recordings as long as Telarc continued to release Tomas'
recordings. Those recordings were not released until August 1997
when Tomas' recording agreement with Telarc was not renewed.
(Tomas Dep. at 72-75)

On January 4, 2000 Tomas commenced the instant action. She filed an amended complaint on February 9, 2000. In her First
Claim for Relief, Tomas seeks a judgment declaring that:

1. She is the natural daughter of Gillespie;

2. She owns a 50 percent beneficial interest in
renewal copyrights for which the original copyrights
were owned by Gillespie, as provided under
17 U.S.C. § 304(a)(C)(ii);

3. She has the right to exploit commercially the
works  during their respective renewal copyright
terms  whose original copyrights were owned by
Gillespie;

4. As co-owner of the renewal copyrights, she is
entitled to an accounting and payment from defendants
with respect to her 50 percent pro rata share of all
proceeds derived by defendants from the commercial
exploitation of the renewal copyrights during their
renewal terms.

In addition, she seeks orders

1. Requiring defendants to render future accountings
and payments to her with respect to all proceeds from
commercial exploitation of the renewal copyrights
during their renewal terms;

2. Imposing a constructive trust with respect to 50
percent of all proceeds to defendants from the commercial exploitation of the renewal copyrights
during their renewal terms.

In her Second Claim for Relief, Tomas seeks

1. A declaratory judgment that, as the natural child
of Gillespie, she possesses a termination interest,
as provided under 17 U.S.C. §§ 304(c) (2) and
203(a)(2);

2. A permanent injunction barring defendants from
representing to any third party that defendants
possess the entirety of the termination interest, and
from purporting to terminate grants of rights to
third parties executed by Gillespie with respect to
any musical composition written by Gillespie or any
sound recording on which Gillespie's recorded
performance appears.

On March 19, 2001, defendants moved for summary judgment on all
claims.

II.

This court has subject matter jurisdiction pursuant to
17 U.S.C. § 101, et seq., and 28 U.S.C. § 1331.*fn2 Summary judgment is appropriate if, after drawing all justifiable
inferences in favor of the nonmoving party, there are no genuine
issues of material fact and the moving party is entitled to
judgment as a matter of law. See Fed.R.Civ.P. 56(c); Curry
v. City of Syracuse, 316 F.3d 324, 329 (2d Cir. 2003).

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